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Resolving the Crisis of Legitimacy at Toronto City Hall

Following on my repost from the archives, some thoughts about the events of the last week (inclusive of next Monday, where Rob Ford is likely to be stripped of his remaining powers and duties):

Council has,?finally, asserted its supremacy over the Mayor. We’ll see if it sticks–Rob Ford promises to challenge the council’s decisions in court, and a court may yet decide that council has gone too far. But for now, this is a partial–yes, partial–resolution of the crisis of legitimacy.

(The crisis of legitimacy, in case you don’t click on the above link, is the result of two competing claims of city-wide legitimate governance: One from the mayor, who says that he alone was elected by the people of the city; and another from council itself, which can reasonably claim to represent the city entire as well. This is a structural flaw that Rob Ford’s tenure has made apparent, but, I submit, is not easily dismissed as simply a problem with Rob Ford. Those Ford voters, after all, aren’t going anywhere.)

Monday will see Ford made, in effect, in to a councillor-at-large: he will have no special privileges except for those that provincial law requires he have, and even those won’t be administered without resistance from council. He will, in every way council currently has at its disposal, have been made powerless.

Except he won’t be powerless, he’ll still be a member of council. And he’s made it clear that he’s going to use the abilities he has as a member of council to prevent the work of council from getting done. He explicitly threatened to filibuster council in response to their discipline on Friday:

Mayor Rob Ford says he’s going to hold every item until his “dying day” on the council floor #TOpoli

Council can take away powers they delegated to the Mayor (or rather, we hope a court agrees they can) but trying to pass Ford-specific limits on the rights of council members to hold items for debate is a lot dicier, legally speaking. So what then? Do we start limiting the rights of all members to hold items for debate, just so we can try and get around Ford’s temper tantrums?

This is ridiculous. Ford is, explicitly, stating that not only does he not have any intention of doing his job, he’s not going to allow anyone else to do his job either. This isn’t hyperbole. The role of the Mayor of Toronto as the head of council is set out in S. 133 (1) of the City of Toronto Act.

133. (1) It is the role of the mayor of the City, as the head of council,
(a) to act as chief executive officer of the City;
(b) to preside over meetings of council so that its business can be carried out efficiently and effectively;
(c) to provide leadership to council;
(d) to represent the City at official functions; and
(e) to carry out the duties of the head of council under this or any other Act.

Rob Ford has explicitly stated that he does not intend to do his job under S. 133 (1) clauses A or B. Council has made C irrelevant. They can’t technically take D away from him but he’s already sufficiently toxic that he can’t represent the city at the Santa Claus Parade or an Argos-Ticats game. So Ford, in a very literal sense, cannot do the job he was hired to.

In any other situation–with an office holder who was not merely abdicating his duties, but actively hindering them–the answer would be simple: he should be removed from office, as fast as reasonably possible. So, great news: The Premier of Ontario says that if council asks for “new tools” to resolve the Ford crisis, her door is open.

And…. nothing, from council. Denzil Minnan-Wong is still talking about this, but councillors by and large don’t seem ready to take this step. Why this should be so is beyond me. Rob Ford has done everything short of literally defecating in the council chambers, but the line from councillors is that if he isn’t actually incarcerated he should get to keep his seat.

This is a ridiculous threshold to set for public office. I’m surprised that even needs to be said. What it amounts to saying is that, short of serious crimes, the only real limit to an abuse of public trust is the abuser’s own sense of shame.

It’s also undemocratic, though many seem to misunderstand this. An election isn’t a get out of jail free card. It’s a conditional license granted by the people to represent them. Just because that license is normally reviewed at regular intervals (elections) doesn’t mean that’s the only permissible way to do so.

To put it simply: if a large majority of council asks the province for the power to remove Rob Ford from office, and that were to get unanimous consent from all three parties at Queen’s Park, you would have the elected representatives of both Toronto and Ontario voting to add accountability to the office of the Mayor. Absolutely nothing in that is undemocratic. It is, instead, a pair of democratic assemblies doing their jobs. Because Rob Ford refuses to do his.

What’s to keep this from abuse? The only thing that keeps anything from abuse in a democratic government: in the final accounting, the voters. If city council votes to remove Rob Ford from office and this so outrages the voters that they want to remove their councillors at the next election, they’ve got the opportunity to do so. But in the meantime, it’s council’s job to properly manage the business of this city.

Or, to repeat myself, it’s Rob Ford’s job but he refuses to do it, and says that as long as he’s a member of council he won’t let anyone else do it either.

To go further, I would say that council should have the power to remove the Mayor to clearly resolve the crisis of legitimacy: council should be supreme, and while it can delegate powers to the Mayor it needs to be clear that the Mayor reigns at council’s sufferance. To reiterate, I think this is a structural need, not something that should be a one-off to deal with Rob Ford.

I’d go so far as to say that council should have the power to expel any member of council who consistently and deliberately undermines the effective and efficient functioning of council, mayor and councillor alike.

The power of the House to expel one of its Members derives from its traditional authority to determine whether Members are qualified to sit. A criminal conviction is not necessary for the House to expel a Member; the House may judge a Member unworthy to sit in the Chamber for any conduct unbecoming the character of a Member.

Historically, members have only been expelled for criminal convictions. But that is explicitly?not the threshold the House sets.

What I’m saying is, the power to expel members of an assembly is properly understood as the power of any normal, mature democratic assembly. And Toronto City Council should have that power, even if councillors can’t (for reasons beyond my understanding) bring themselves to use it.

To answer a few quick questions I assume will be asked:

1) What happens next, if council removes Ford from office?

Council has an existing policy for dealing with vacancies, which we’ve already seen used recently. They can choose to appoint a successor or hold an election. Given that we’re less than a year away from the next citywide election anyway, I suspect many councillors would vote for a replacement. But the basic point is: the procedural machinery for a vacancy at council already exists, and we don’t need to reinvent the wheel.

2) What about (insert my preferred fix here)?

There are a bunch of other ideas to help make council work better. Dave Meslin has been advocating for Instant Runoff Voting, other cities use at-large councillors instead of ward systems, etc. These are all methods that deserve study, but they don’t resolve the problem we have now, or prevent it from occurring in the future.

There is no evidence that Instant Runoff Voting would have prevented Ford from becoming Mayor (contemporary polls showed Ford was the 2nd choice for many Smitherman and Pantalone voters) and absolutely nothing about his tenure in office should make you think that IRV would have changed the way Ford would have comported himself since. (To be cruel about it, he was not thinking about his poll numbers while smoking crack.)

Similarly, at-large councillors (councillors voted for by the city entire, instead of wards) don’t?on their own solve the problem of the competing claims to legitimacy. Any individual at-large councillor will still likely get fewer votes than the Mayor would, individually. (In the 2011 election, Vancouver’s Gregor Robertson got?77,005 while the leading councillor got?63,273.)

It’s possible to imagine a situation where we elected a number of at-large councillors and then selected the leading one to be mayor so long as they held a majority of council’s support, but that’s something very different from simply electing councillors differently. I’d be fine with that scenario, but I think it’s a lot farther from where we are today–and it still doesn’t solve the problem of someone (coughcoughRobFordcough) using their privileges as a member of council to obstruct the business of council.

3) What about the potential for abuse?

Every system can be abused, and most are. Abuses can be a reason for caution, but on their own can’t be a reason to avoid necessary changes. (Police abuse civilians. Few think the absence of police would be preferable.) The actual history of expulsion powers suggests that abuse isn’t something we have to worry about. The Canadian House of Commons has expelled four members in its entire history, all for the commission of crimes. 17 of the 20 members of Congress who have ever been expelled were Southern Democrats who joined the Confederacy, and expulsion for treason seems pretty reasonable. Neither chamber shows a history of political expulsion votes.

The design of an expulsion rule is important–I wouldn’t recommend a simple majority, and I’m open to other suggestions, such as a requirement for multiple votes separated by a decent interval. (Two votes within 15 days, for example.) But there’s no reason to suggest that expulsion powers, in and of themselves, are likely to be abused by Toronto City Council. They are, however, the only tool left that could actually solve the crisis at City Hall.

Wrapping up:

Toronto City Council should have the power to expel a member of council who becomes an immovable obstacle for the business of the city. Whether Mayor or Councillor, nobody should be able to hold the city and its business hostage. Arguing against this as a basic right of a democratic assembly is to argue that Toronto’s council is not a mature level of government. If there are any councillors reading this, please: You’ve insisted since amalgamation that Toronto is a responsible level of government. That has to mean something concrete, and now it means you have to ask the province for the power to expel an irresponsible member of council.

Rob Ford has long since earned his expulsion from council even aside from my concerns about the structural imbalances of mayoral and council power. He demeans his office and the offices of people around him. He humiliates council and the city as a whole. The only thing left for him to do is literally defecate on the council floor, but according to some it would be undemocratic for us to keep him from doing so. This is absurd. Representing the voters isn’t a right, it’s a privilege that emanates from our individual rights, and Ford has used up the last of his political privileges.

However, since we’re seeing the resolution of the crisis of legitimacy through council asserting its supremacy, this is a further reason to say that if the province won’t give council the power to expel any member, it at least needs the power to remove the mayor. That permanently, and correctly, tips the balance of power in council’s favor. I’m saying this now because of the current crisis, and if the Second Coming of David Miller ever smokes crack on video, hangs around with criminals and holds a St. Patty’s Day hillbilly bacchanalia at city hall, I’ll be saying the same then.

The alternative is to spend the next year as Rob Ford does what he tells us he’s going to: sue the city for his powers back, costing millions of dollars and months of time all while he does everything he can to obstruct anything he can. If that worries you less than the political risks of a more powerful council, you don’t have your priorities straight.

Addendum, 9:00 p.m.:

This post has already had a lot of reception on Twitter, and thank you all for that. But there’s something that needs to be stopped right now. That is our apparent inclination to believe that there must be some procedural fix to the problem Rob Ford poses short of expulsion.

There isn’t.

Specifically, some people seem to be unfamiliar with or misunderstand the Toronto City Council “hold”. Holds are council’s way of streamlining business — basically, any item not held at the beginning of council that doesn’t need to be otherwise approved at a later vote gets passed without further debate. (Items are, of course,debated at the committee stage.) The hold is the crucial first step that allows a member of council to ask questions of staff, make an amendment, and speak for or against an item. So while there might be some way to limit Ford’s ability to abuse holds, it’s not as simple as saying it–we’re talking about a fundamental feature of council’s procedures.

And council?needs this feature because Toronto City Council handles a workload unlike any other GTA municipality. Toronto-East York Community Council–just one of council’s many committees–regularly deals with over 100 items on its own. And there are three other community councils. And all the other committees. Dealing with the business of council without the hold system simply isn’t tenable.

But suppose we figure out a way to do it that passes legal muster. Then what? Do we also restrict Ford’s ability to ask questions of staff? His ability to speak on an item? To make amendments? Even if Ford’s privileges are simply restricted to the items other people hold, he has any number of ways he can filibuster the business of council.

To put it simply, Rob Ford is likely to more creative at abusing the process of council than council is at crafting a Ford-proof process.

And to be clear: it’s not the basic process of council that’s at issue here.?Rob Ford is a bad actor, who needs to be punished. Previous punishments have been ineffective, and future punishments along the same line will be equally ineffective. So council needs something stronger. That means expulsion.